Friday, September 19, 2008

Today, the International Court of Justice concluded its public hearings in the case concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine). The case concerns the delimitation of the exclusive economic zones and continental shelf appertaining to Romania and Ukraine in the Black Sea. Case documents, including the application, written proceedings, and the verbatim record of the current hearings, are available here.

At the conclusion of the proceedings, the Agents of the Parties presented their final submissions to the Court, as follows.

For Romania:

Romania respectfully requests the Court to draw a single maritime boundary dividing the maritime areas of Romania and Ukraine in the Black Sea, having the following description:

(b) from point X in a straight segment to point Y, at 45° 11' 59" N, 30° 49' 16" E;

(c) then on the line equidistant between the relevant Romanian and Ukrainian adjacent coasts, from point Y, passing through point D, at 45° 12' 10" N, 30° 59' 46" E, to point T, at 45° 09' 45" N, 31° 08' 40" E;

(d) and then on the line median between the relevant Romanian and Ukrainian opposite coasts, from point T - passing through the points of 44° 35' 00" N, 31° 13' 43" E and of 44° 04' 05" N, 31° 24' 40" E, to point Z, at 43° 26' 50" N, 31° 20' 10" E.

For Ukraine:

For the reasons given in Ukraine’s written and oral pleadings, Ukraine requests the Court to adjudge and declare that the line delimiting the continental shelf and exclusive economic zones between Ukraine and Romania is as follows:

(a) from the point (point 1) identified in Article 1 of the 2003 Treaty between Ukraine and Romania on the Régime of the Ukrainian-Romanian State Border, having the co-ordinates of 45° 05' 21" N; 30° 02' 27" E, the line runs along a straight line to point 2, having the co-ordinates of 44° 54' 00" N; 30° 06' 00" E; then

(b) from point 2, the line runs along an azimuth of 156° to point 3, having the co-ordinates of 43° 20' 37" N; 31° 05' 39" E; and then continues along the same azimuth until it reaches a point where the interests of third States potentially come into play.

The co-ordinates are referenced to the Pulkovo datum (i.e., using the Krasovsky ellipsoid), and all lines are loxodromes.

The subprime meltdown, inflation, global food shortage, and rising oil prices . . . the world has become a very different place as we entered 2008. How will the new economic environment affect the World Trade Organization (WTO), and how shall the WTO deal with these new challenges in such difficult time? Bringing together leading WTO scholars from Asia and beyond, this international conference will provide a good opportunity to reflect upon some of the most pressing issues facing the multilateral trading system today.

Oxford University Press recently launched online the Max Planck Encyclopedia of Public International Law, edited by Rüdiger Wolfrum. This is a new edition of the Encyclopedia of Public International Law, which was published between 1991 and 2001 under the direction of Rudolf Bernhardt. Articles are being uploaded in phases. Thus far, over 450 articles are online; another set is due to be uploaded in October. A list of recently published articles is here; a list of all planned articles is here. A print version will appear once online publication is completed in 2010.

Today, at American University's Washington College of Law, there will be a conference on "Looking Past Guantanamo: Are New Concepts Needed for Terrorist-Related Detentions?" The program is available here. Why attend?

Cosponsored by Washington College of Law, the National Institute of Military Justice and the Federalist Society, and in cooperation with the ABA Section of International Law National Security Committee. The next conversation in global counter-terrorism will consider the long-term future of terrorist-related detentions. The resolution of this conversation will depend on chosen model to govern the detention. Many lawyers have argued that the United States and its allies are at war with terrorists under the laws of armed conflict. Yet others counter that terrorism is fundamentally a domestic criminal offense and should be prosecuted under the law enforcement paradigm. While substantial efforts have been made to resolve these and related disagreements by making procedural alterations in the military commissions or the proposed National Security Court, many critics argue that these modifications are unable to overcome the very same conceptual challenges that justify the changes. After more than six years of discussion, this issue remains unresolved within the legal community. This conference advances that conversation by asking whether the law enforcement and international humanitarian law models are able to theoretically address the unique characteristics of international terrorism or whether new concepts are needed.

Thursday, September 18, 2008

On September 11th, the ICTY Trial Chamber rendered its judgment in the case (No. IT-03-67-R77.1) against Ljubiša Petković. Petković was charged (order here) with contempt of the Tribunal for having knowingly and willfully interfered in the administration of justice by refusing to respect a summons and appear as a witness before the Chamber.

In its decision (summary here; press release here; judgment not yet available online), the Trial Chamber found Petković guilty and sentenced him to four months imprisonment.

On Monday, the ICTY Trial Chamber rendered its judgment in the case (No. IT-04-83) against Rasim Delić, former Commander of the Main Staff of the Army of the Republic of Bosnia and Herzegovina. Delić was charged, under a theory of superior responsibility, with four counts of war crimes (murder, cruel treatment, and rape) for failure to take reasonable steps to prevent and punish crimes that occurred during his command (amended indictment here). In February of this year, the Trial Chamber, in an oral decision (transcript here), acquitted Delić of one of the counts (rape).

In Monday's judgment (judgment here; summary here; press release here), the Trial Chamber acquitted Delić of all the remaining charges except one count of war crimes (cruel treatment), for which it entered a conviction over the dissent of Judge Moloto. Delić's sole conviction was for failing to take the necessary and reasonable measures to prevent and punish the crimes of cruel treatment committed by the El Mujahed Detachment (EMD) in the village of Livade and in the Kamenica Camp in July and August 1995. Judge Moloto disagreed with the majority's conclusion that Delić had effective control over the EMD. On the other counts, the Chamber found either that Delić did not retain superior responsibility over the forces that committed the crimes or that he did not have reason to know that crimes were about to be or had been committed. The Trial Chamber sentenced Delić to three years imprisonment.

This paper seeks to establish the viability of the "convergence" thesis as applied to common and civil law by an examination of the emergence of international criminal law, particularly as it is applied by international criminal tribunals. It suggests that the concept of "legal hybrid" is that which most approximates the conditions in which two legal systems or traditions do not simply overlap, but blend into a sui generis system that is more than the sum of both. It traces the dynamics of that hybridization, in an attempt to understand how transystemic "areas" in the law are produced, sustained and developed.

Beth Van Schaack (Santa Clara Univ. - Law) & Ron Slye (Univ. of Seattle - Law) have posted a number of chapters from their forthcoming book The Essentials of International Criminal Law (Aspen Publishers):

Anticipatory military activities, which include both preemptive and preventive military actions, are at the centre of American strategic doctrine – however, states rarely use these activities. Rachel Bzostek puts forward an integrated analysis to help understand why states have or have not undertaken such activities in the past. By exploring what kinds of strategic or structural elements compel states or leaders to take anticipatory military action, as well as how these concepts are viewed in both international law and the just war tradition, this book uses case studies to explore those elements that have played an influential role in the decision-making process.

This article analyzes international investment protection law by using tools of economic contract theory. Contract theory has been applied to international trade law, but investment law has not yet been analyzed under this methodology.

Bilateral Investment Treaties or International Investment Agreements may be interpreted as a mechanism for overcoming commitment problems between investor and host state in order to generate mutual benefits. States thereby trade credibility for sovereignty as international investment law restricts the regulatory conduct of states to an unusual extent, subject to control through compulsory international adjudication. A well-known problem in contract theory is how to deal with uncertainty. Parties cannot easily design contracts that maximize jointly beneficial investments and at the same time respond appropriately to changing conditions ex post. Changing conditions are a prevalent characteristic in investment law covering long term investments. Contract theory finds that too strict and inflexible contracts may impair the joint surplus of the contracting parties. Thus, a trade-off arises between ex ante strong commitment devices on the one hand and flexibility ex post in order to uphold the efficiency of the contract on the other hand. The article analyzes commitment and flexibility mechanism in international investment protection law and proposes to use similar mechanisms to the WTO law in order to design more optimal contracts (that is investment treaties).

The international community’s practice of administering territories in post-conflict environments has raised important legal questions. Using Kosovo as a case study, Bernhard Knoll analyses the identity of the administrating UN organ, the ways in which the territories under consideration have acquired partial subjectivity in international law and the nature of legal obligations in the fiduciary exercise of transitional administration developed within the League of Nations’ Mandate and the UN Trusteeship systems. Knoll discusses Kosovo’s internal political and constitutional order and notes the absence of some of the characteristics normally found in liberal democracies, before proposing that the UN consolidates accountability guidelines related to the protection of human rights and the development of democratic standards should it engage in the transitional administration of territory.

Report on the Protocols of 2005 to the Conventoin Concerning the Safety of Maritime Navigation and to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (Treaty Doc. 110-8) (Ex. Rept. 110-25); and

International law scholars debate when international rules matter to states and what affects compliance. One of the few areas of agreement is that fairly robust levels of compliance can be achieved by tapping into states' concerns with their reputation. The logic is intuitively appealing: a state that violates international law develops a bad reputation, which leads other states to exclude the violator from future cooperative opportunities. Anticipating a loss of future gains, states will often comply with international rules that are not in their immediate interests. The level of compliance that reputation can sustain depends, however, on how the government decision-makers value the possibility of being excluded from future cooperative agreements. This paper examines how governments internalize reputational costs to the "state" and how audiences evaluate the predictive value of violating governments' actions. The paper concludes that reputation, as currently conceived, is unlikely to be a robust source of compliance.

Although the problem of prosecutorial discretion at the International Criminal Court has received some critical attention, the current scholarship has insufficiently addressed the complex relationship between prosecutorial discretion in individual criminal cases and the Security Council's Chapter VII authority at the collective level. The Office of the Prosecutor apparently believes that it has broad authority to initiate an independent review even after a Security Council referral, though the Office voluntarily recognizes that matters of peace are better left to other institutions within public international law. By making a distinction between general and specific discretion, this article develops the argument that the ICC Prosecutor's discretion is in fact greatly constrained by Security Council referrals, despite the fact that the Rome Statute purports to give the prosecutor discretion to make decisions based on the "interests of justice". If the phrase "the interests of justice" is interpreted to incorporate matters of justice at the collective level, then the Rome Statute's putative grant of discretion to the ICC Prosecutor conflicts with the basic structure of international legal institutions.

The 2008 seasonal meeting of the New York State Bar Association's International Law and Practice Section will take place today through Saturday in Stockholm. The conference's theme is "Globalization - Harmonization of Laws: Is It Real?" The program is here.

After the Holocaust, the world vowed it would “never again!” permit such mass atrocity crimes, yet many have since gone unchecked, from the killing fields of Cambodia to the machetes of Rwanda to the ongoing nightmare in Darfur. Gareth Evans, president of the International Crisis Group, explains this lack of government action. In a more hopeful vein, however, he also shows how the emergence of a new international norm can protect the peoples of the world from mass crimes.

The Responsibility to Protect (or R2P) concept was born in 2001 and embraced at the UN World Summit in 2005. The heart of this new international norm is the belief that if sovereign governments fail to protect their own people from genocide, ethnic cleansing, or other major crimes against humanity, then the wider international community must take whatever action is appropriate. The new norm emphasizes assistance and prevention, not coercion, but it also accepts that it is sometimes right to fight. The bottom line is that the world cannot just stand by.

“Never again” is still more a hope than a promise, however. The 2005 consensus remains politically fragile, with many developing states worrying that R2P goes too far or is too easily capable of misuse by major powers. Political will must be solidified, and effective institutional capacity must be created. This important book meets these challenges head on, clarifying misunderstandings about the new norm’s scope and limits and spelling out the steps needed to make R2P work in practice.

Evans shows how Responsibility to Protect is far better equipped to end mass atrocity crimes than is “the right to intervene” or any other “humanitarian intervention” doctrine of the past. The book is enlivened throughout by real-world examples, analyses of current events, and assessments drawn from the author’s own vast experience.

How, if at all, do governments influence the choices that international judges make? This question has justly received ample attention in the literature. Unlike in the study of U.S. judicial politics, however, relatively few of these scholarly efforts have been devoted to the question of how governments use the appointment process to shape the international judiciary. This article evaluates what we know about the politics of international judicial appointments and identifies some areas for future research. International judges are much more diverse in their backgrounds and preferences than is commonly assumed. To some, the prototypical international judge is a committed professional with exceptional moral standards who cares deeply about the advancement of international law and is largely unresponsive to material incentives or political pressures. To others, international judges are more like diplomats who use legal reasoning as a mere guise for making decisions that fit the national interests of the governments that appointed them. Empirical research appears to show that the international judiciary contains examples of both these ideal types as well as many others. More interestingly, this research suggests that this variation can be understood reasonably well by examining the motivations of governments and the institutional details of the appointment process.

Benn McGrady, Fragmentation of International Law or "Systemic Integration" of Treaty Regimes: EC-Biotech Products and the Proper Interpretation of Article 31(3)(c) of the Vienna Convention on the Law of Treaties

International criminal law currently lacks a robust procedure for sentencing convicted defendants. Legal scholars have already critiqued the sentencing procedures at the ad hoc tribunals, and the Rome Statute does little more than refer to the gravity of the offense and the individual circumstances of the criminal. No procedures are in place to guide judges in exercising their discretion in a matter that is arguably the most central aspect of international criminal law -- punishment. This paper argues that the deficiency of sentencing procedures stems from a more fundamental theoretical deficiency -- the lack of a unique theory of punishment for international crimes, specific to criminals responsible for genocide, crimes against humanity, and war crimes. Many of the familiar theories of punishment in the municipal context -- rehabilitation, deterrence, and the like -- are ill-suited for the international context. Consequently, the procedural vortex in sentencing can only be filled once a sui generis theory of punishment is adopted by international criminal law that gives appropriate weight to retributive considerations. The paper concludes by suggesting the following procedural changes: return the sentencing phase in international trials, create an international sentencing commission, and draft non-binding international sentencing guidelines.

States treat international commercial arbitration (ICA) and international adjudication quite differently. While domestic courts routinely enforce the rulings of ICA panels, they are much less willing to enforce the judgments of international courts like the International Court of Justice (ICJ). In this essay, I explain why. States treat ICA and international adjudication differently because they are very different enterprises. ICA avoids legitimacy problems, fosters domestic economic growth, and appeals to influential domestic constituencies. By contrast, international adjudication raises serious legitimacy concerns, does not clearly foster economic growth, and cannot rely on the same level of interest-group support. I explore these differences by comparing state practice under the most important ICA convention, the New York Convention of 1958, with the longstanding controversy over the domestic effect of ICJ judgments under the Vienna Convention on Consular Relations - a controversy addressed by both American and German courts.

Rising legalization in the international community has led to greater use of international tribunals and soft law. This paper explores the intersection of these instruments. The decision of an international tribunal interprets binding legal obligations but is not itself legally binding except, in some instances, as between the parties. The broader, and often more important function of a tribunal's decision - its influence on state behavior beyond the particular case and its impact on perceptions regarding legal obligations - is best characterized as a form of soft law.

Despite its inability to bind states, a tribunal can influence state behavior by implicating a state's reputation for compliance with international law, by bolstering the reciprocity underlying an agreement, or by triggering retaliation. In this sense the rulings of a tribunal influences states through the same mechanisms as does binding international law. Because tribunal rulings are soft law, however, they avoid the need for unanimity among states, thereby making it easier for the legal system (including the non-binding aspects of that system) to adapt to changing circumstances and conditions.

By establishing a tribunal to interpret legal obligations in a way that gives rise to a soft law jurisprudence, therefore, states are able to expand the tribunal's influence beyond those states that submit to the tribunal's jurisdiction. In effect, all states subject to the underlying legal obligation come to be subject to the soft law impact of the tribunal, regardless of whether they have formally submitted to the tribunal's jurisdiction. In this way tribunals create what can be called an international common law able to evolve without formal agreement from states.

The American Branch of the International Law Association's International Law Weekend 2008 will take place October 16-18, 2008 in New York City. The conference's theme is "The United States and International Law: Legal Traditions and Future Possibilities." (I noted the call for papers here.) The draft schedule is now available here.

This article examines the evolution of legal education as it has moved through international, transnational, and now global paradigms. It explores these paradigms by reference to practice, pedagogy, and research. Internationalisation saw the world as an archipelago of jurisdictions, with a small number of lawyers involved in mediating disputes between jurisdictions or determining which jurisdiction applied; transnationalisation saw the world as a patchwork, with greater need for familiarity across jurisdictions and hence a growth in exchanges and collaborations; globalisation is now seeing the world as a web in more ways than one, with lawyers needing to be comfortable in multiple jurisdictions.

The Washburn University School of Law Center for Law and Government and the Washburn Law Journal will host a symposium on "The Rule of Law and the Global War on Terrorism: Detainees, Interrogations, and Military Commissions," November 13-14, 2008, in Topeka, Kansas. The program is here. Why attend?

The United States Constitution was founded on the Rule of Law. The Global War on Terrorism has tested the limits of our constitutional values and has posed unprecedented challenges for the U.S. legal system. Throughout these difficult times, the federal courts have been instrumental in upholding the Rule of Law.

The Rule of Law and the Global War on Terrorism Symposium will examine legal implications of governmental actions taken in response to the attacks of September 11, 2001. Our speakers and participants will reevaluate and reassess these complex issues to explore possible ways forward as our nation prepares for a new administration.